K.K. Birla, J. - (1.) Kedar Tiwari appellant has preferred this appeal against the order dated 31st January, 1979 passed by the 3rd Additional Sessions Judge, Varanasi convicting him under Section 304, Part (I), I.P.C. read with Section 34, I.P.C. and sentencing him to 7 years' R. I.
(2.) In brief, a case under Section 324, I.P.C. was pending against the present appellant and his brother-in-law Ramji Tiwari for causing injuries to Ram Bahal Tiwari. On 22nd December, 1976 at about 1.00 P.M. this appellant and Ramji Tiwari asked Ram Bahal to compromise that case. On his refusal they started assaulting him with Lathis causing injuries to him. Sri Ram Bahal in a injured condition was taken to the Police Station, Saidraja by his son Ram Bharose Tiwari (PW 1). At 6 30 P.M. on the same day a report was lodged by Ram Bahal for a non-cognizable offence under Section 323, I. P. C. The report was scribed by constable moharrir Bhola Nath Kunwar (PW 8) on the dictation of Sri Ram Bahal. In this report Sri Jamuna Tiwari and Sri Shiv Bharose Tiwari were named as the witnesses. The injured was medically examined by Dr. Y. N. Pandey (PW 2) at 7.30 P.m. on 22nd December, 1976 who found five injuries on his person. The injured died at about 12.00 in the same night, his post-mortem was conducted by Dr. B. B. Rai (PW 9) vide post-mortem report (Ex. Ka-11 ). Sri Ramji Tiwari was not tried as he had already absconded earlier and only Sri Kedar Tiwari was tried for the offence under Section 302/)4, I.P.C.
(3.) In support of its case the prosecution examined 9 witnesses. Sri Ram Bharose Tiwari PW 1) and Sri Shiv Bharose Tiwari (PW 4) were examined as eye-witnesses.;